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Fact check: How Trump’s lawyers twisted the facts in their anti-impeachment filing

David Butow/Redux

In a new legal filing, lawyers for former President Donald Trump accused the House Democrats who are leading Trump’s impeachment trial of playing “shamefully fast and loose with the truth.”

But at various points in their 75-page trial memorandum, Trump’s lawyers themselves twisted or omitted critical facts.

The lawyers — Bruce L. Castor, Jr., David Schoen and Michael T. van der Veen — made a series of constitutional arguments in the memorandum. Most notably, they argued that the Constitution does not allow the Senate to hold an impeachment trial of a former president. They also argued that it is unconstitutional to impeach Trump over “political speech” they say is protected by the First Amendment.

Many legal experts say that both of these arguments are wrong. In this article, though, we’ll set the constitutional debate aside. Our focus is the part of the memorandum in which the lawyers tried to defend Trump’s actual conduct.

Trump’s use of the word “fight”

Trump’s lawyers wrote that, of over 10,000 words in Trump’s speech at The Ellipse park near the White House on the day of the insurrection, “Mr. Trump used the word ‘fight’ a little more than a handful of times and each time in the figurative sense that has long been accepted in public discourse when urging people to stand and use their voices to be heard on matters important to them; it was not and could not be construed to encourage acts of violence.”

Facts First: Trump used the word “fight” or its variants 20 times in his January 6 speech.

There’s no firm definition of “handful,” so we can’t definitively declare the claim false, but 20 times is a lot. And while we’ll leave it up to others to determine how literal or figurative Trump was, some of the 20 references were quite pointed.

Near the end of the speech, Trump said, “And we fight. We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore.”

Early in the speech, he said, “Republicans are constantly fighting like a boxer with his hands tied behind his back. It’s like a boxer. And we want to be so nice. We want to be so respectful of everybody, including bad people. And we’re going to have to fight much harder. And Mike Pence is going to have to come through for us, and if he doesn’t, that will be a — a sad day for our country, because you’re sworn to uphold our Constitution.”

Trump was talking about his desire for Pence to prevent the certification of Joe Biden’s electoral votes — which Pence never actually had the power to do.

The insurrection timeline

Trump’s lawyers claimed that “a simple timeline of events demonstrates conclusively that the riots were not inspired by the President’s speech at the Ellipse.” The lawyers cited an article that noted the park is 1.6 miles away from the Capitol and that barriers around the Capitol were first breached before Trump had even finished speaking.

Facts First: Because rioters were still present at the Capitol more than three hours after Trump concluded the speech, people had more than enough time to attend Trump’s speech at the park and then storm the Capitol; the FBI alleges that some participants did make this walk, including one who allegedly went from the Trump speech to her hotel and then into the Capitol. It is true that the timeline shows that someone who attended the entirety of the speech at the park could not have been among the very first people to breach the Capitol grounds, but that’s a narrower claim than the one Trump’s lawyers are making.

And all of this ignores the fact that insurrectionists near the Capitol could have listened to Trump’s speech on their phones or could have been inspired by Trump’s previous rhetoric.

Who breached the Capitol and why

Trump’s lawyers argued, “The real truth is that the people who criminally breached the Capitol did so of their own accord and for their own reasons, and they are being criminally prosecuted.”

The lawyers linked, in a footnote, to an article in The Gateway Pundit, a right-wing website that is known for promoting false conspiracy theories and that had its account banned from Twitter this weekend. The article began by claiming that “anti-Trump groups primarily perpetrated [the] insurrection on the U.S. Capitol on Jan. 6.” The lawyers’ footnote said of the insurrectionists: “Some anti-Trump, some anti-government.”

Facts First: This is inaccurate by omission. Numerous participants in the insurrection are alleged in court documents to have told the FBI their actions were motivated by their support for Trump — and some have even said they felt they had been directly instructed by Trump to take action. The list of people charged over the insurrection includes both pro-Trump alleged members of right-wing extremist groups and Trump supporters unaffiliated with formal groups.

While the ideology of some alleged participants can be hard to pinpoint, there is no basis for the suggestion that the insurrection was primarily perpetrated by Trump opponents.

Trump’s video during the insurrection

Trump’s lawyers noted that during the insurrection, Trump “told rioters to go home.” In a footnote on the same page, the lawyers elaborated that “upon hearing of the reports of violence,” Trump tweeted a video “urging people to ‘go home’ and to do so in ‘peace.'”

Facts First: These statements omit key context. In the same video in which Trump urged rioters to “go home in peace,” he continued to lie that the election was “stolen from us” and that it was a “fraudulent election.” (And he told the rioters that “we love you” and that “you’re very special.”) In addition, Trump did not tweet the video until 4:17 PM Eastern, about two hours after the rioters forced their way into the Capitol and more than three hours after barricades outside the building were first breached. Also, CNN and other media outlets have reported that Trump had to be lobbied by allies to release the video.

And in a tweet nearly two hours after the video, which was quickly deleted by Twitter, Trump seemed to offer a rationalization for the violence while also repeating his lie about the election result: “These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. Go home with love & in peace. Remember this day forever!”

Trump’s reaction to the violence

Trump’s lawyers rejected media reports about the former President’s reaction to the riot. “There is no legitimate proof, nor can there ever be, that President Trump was ‘delighted’ by the events at the Capitol. He, like the rest of the Country, was horrified at the violence,” they wrote.

Facts First: This is disputed. Multiple media outlets reported in January that Trump was not horrified by the riot as he watched it unfold on television.

CNN reported: “White House staffers were visibly shaken by Trump’s response to the mob breaching Capitol Hill. The President was borderline enthusiastic over the protests and did not want to condemn them, multiple people said.” The New York Times reported: “As supporters stormed into the Capitol on Wednesday, Mr. Trump was initially pleased, officials said, and disregarded aides pleading with him to intercede.” And The Washington Post reported: “Though not necessarily enjoying himself, he was ‘bemused’ by the spectacle because he thought his supporters were literally fighting for him, according to a close adviser. But, this person said, he was turned off by what he considered the ‘low-class’ spectacle of people in ragtag costumes rummaging through the Capitol.”

Trump’s behind-the-scenes actions

Trump’s lawyers said of the former President: “He and the White House further took immediate steps to coordinate with authorities to provide whatever was necessary to counteract the rioters.”

Facts First: This is also disputed. Trump’s lawyers did not say what these “immediate steps” were, so this claim is too vague for us to definitively fact check, but it’s worth noting that Trump initially resisted deploying the National Guard. It was Pence who took the lead on the Guard deployment and spoke to Joint Chiefs of Staff Chairman Gen. Mark Milley and then-acting Secretary of Defense Christopher Miller.

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